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Google-YouAd is a Deceptive and Unfair Business Practice – Part 29 Google Unaccountability Series

Google represents its new default policy -- taking a user’s name and picture and putting it in their ads without permission or compensation -- as “Shared Endorsements.”  This deceptive and unfair business practice is more aptly named Google-YouAd, “Pirated Endorsements,” or “Swindled Endorsements,” because they are taken deceptively without permission or compensation.

To Google, people apparently are just another form of digital content that should be open and free to exploit without asking the owner for permission and without any expectation of payment from Google for the value that Google generates from the taken content.

We should not be surprised. Google is treating their users, not as humans with privacy and ownership rights, but as inanimate products, content, and “targets” of their advertising model. Notice that they are treating people’s unique identities just like they treat others valuable content that is trademarked, copyrighted, patented, private, confidential or secret. Simply they take it without permission or compensation until an authority that they fear compels them to cease and desist.

Google’s model assumes every digital thing of others is free and open for Google to use without permission. They see it as the responsibility of others to protect themselves from Google: to vigilantly protect and re-protect their private information; to continuously monitor Google and request a takedown of pirated content; to sue Google if they think Google has violated the law; or to just stop using Google if they don’t like any aspect of what Google does.    

If Google wants something it takes it and represents it’s actions as altruistic “sharing,” acceptable “fair use,” or more broadly what a free and open Internet allows.        

Dominance has its privileges.

One such Google privilege is promising its users one thing then being able to get away with doing the opposite. Another is the market power to set default new terms of service policies to instantaneously extend that dominance to a new market dimension. Yet another privilege is having the confidence of unique data and experience that Google users have little practical choice but to accept Google’s increasingly exploitive terms of use.

First Google baited users with a corporate commitment to provide “the best user experience possible” then pulled the “switch” by announcing a new default practice of “Shared Endorsements” that use Google a user’s name and photo as commercial endorsements in Google advertising without either their permission or compensation.

This bait-and-switch exploitation is powerful proof Google views consumers as a product that Google effectively owns and sells to others, not Google’s customer or a person with any real control over their privacy, identity or prosperity.

Google-YouAd speaks volumes about Google’s lack of respect for their users. In addition to being a privacy violation via misappropriation of a person’s name or likeness without permission, Google-YouAd is a violation in most states of the legal right to publicity, i.e. “the right of a person to control and make money from the commercial use of his or her identity.”   On top of that, Google-YouAd also is a federal deceptive and unfair business practice.

Why is Google-YouAd a deceptive business practice?

Google’s claim -- that the purpose of “Shared Endorsements” is “to ensure that your recommendations reach the people you care about…” -- is very deceptive because the program gives the exploited no control to ensure that their name and photo is not delivered to people they do not care about, or rightfully fear, i.e. potential stalkers, identity thieves, and other malefactors. Meanwhile, the real purpose is to increase the price for Google advertising without any additional cost to Google for a user’s right to publicity.

Google doubles down on this deception and misrepresentation by promising in its Terms of Service: “On Google, you’re in control of what you share.” However, with neither an opt-in policy, nor any tool to control where, how, or when a person’s name and photo are advertised publicly, users are not in fact “in control” of what they are “sharing.”   

Google’s Terms or Service increase the deception by representing: “We aim to provide you with the world’s strongest security and privacy tools.” This is very deceptive because an opt-out privacy tool is obviously much weaker than an opt-in privacy tool. 

Google’s privacy policy increases the deception further by stating: “We will share personal information with companies, organizations or individuals outside of Google when we have your consent to do so.” Google knows not opting out is not the legal or reasonable equivalent of affirmative consent, when involving a contractual commercial transaction where Google is deceptively exploiting another’s property for financial gain.

Google’s software principles policy increases the deception even further by stating: “We’re alarmed by what we believe is a growing disregard for your rights as computer users.” This is very deceptive when Google knows that Google more than any other American company is a leader in growing disregard for users’rights – see here, here, here, here, here, and here for overwhelming evidence of Google’s disregard for users rights.

Why is Google-YouAd an unfair business practice?

How is it a fair business practice for a user to get no compensation from Google for the commercial benefit that Google gets from higher ad prices, more ad demand, more ad clicks, and higher revenues from Google-YouAd advertising – and where the user is the “star” and the reason for the higher advertising value?

Google revenue shares with websites that advertise with, and create value for, Google. Google revenue shares with content owners and developers that create value on Google Play. How is it fair for Google to not revenue share with users when their commercial endorsements also create monetary value for Google?  

In most states it is illegal under right to publicity laws for a person to be denied control and to make money from the commercial use of his or her identity. Google-YouAd is clearly a commercial use of a person’s identity or likeness without a user’s affirmative permission or any compensation. How does that make it a fair business practice?

And if Google argues that its free services are implied compensation for Google-YouAd, then how is it fair that everyone is “compensated” for the commercial use of their private information to target ads, but no one is additionally or variably compensated for the new, different and more valuable use of a name and facial endorsement of an advertised product? What additional or variable benefit are those that don’t opt out getting from Google?

How is it fair to consumers that have their name and likeness endorse a Google advertised product or service without their affirmative permission and compensation when that practice could put the users at greater risk of stalking, identity theft, fraud, etc. because their name and face have been publicly linked in places that they have no control over and in ways that they did not ever think could happen?   

How is it a fair business practice when neither the advertiser nor a Google-YouAd person, have any control over what their brand or name/likeness will de facto “endorse?” Given the history of Google’s algorithms frequently putting brand advertising next to links or videos involving illegal activities, offensive material, or positions that they personally oppose, it is an unfair business practice and exercise of market power that both advertisers under enhanced campaigns, and now users under Google-YouAd,  have no choice over what Google has them effectively endorse.    

The reason Google does not allow “shared endorsements” for people under 18, is that they know their algorithm could put a person’s name and photo in a position where it could give the impression that Google effectively was trafficking minors to others.

Google should know better. That same misimpression problem could put unsuspecting women over eighteen at risk as well. Advertising a woman’s real name and picture without permission and putting it against uncontrolled content or websites that could imply the user is “endorsing” illegal or inappropriate activity, could put that person as much greater risk of stalking, harassment, identity theft, fraud, etc. Google clearly has not thought this through or does not care.

To be a more fair business practice, Google’s terms of use should fairly represent that either Google has protections and procedures in place that “Shared Endorsements” will not put users in any harm to their person or their reputation, or includes a conspicuous warning/disclaimer that if the user does not opt out, they have no right to sue Google because they have been duly warned that their “Shared Endorsement” could result is unwanted, stalking, harassment, identity theft, or fraud, and that the user accepts all responsibility and liability for Google’s actions.   

Given Google’s privacy stance in court that users have no reasonable expectation of privacy from Google, would it be a fair or unfair business practice for Google to use a users name and likeness in a “shared endorsement,” if the endorsement was gleaned from a gMail message that Google scanned for advertising, or it was gleaned in a Google Docs document stored in Google’s cloud?  

Conclusion

Google’s default “Shared Endorsement” policy to take a users name and photo and put it into commercial advertising without permission or payment is a deceptive and unfair business practice, in addition to being irresponsible and reckless corporate behavior.

Expect Google-YouAd to get challenged federally at the FTC by privacy advocates under the FTC’s Section 5 authority which prohibits unfair and deceptive acts and business practices.

And expect state attorneys general to investigate Google-YouAd and likely challenge it on one or several grounds: misappropriation of privacy; violation of users’ right to publicity; misrepresentation; fraud; identity theft; and reckless endangerment.   

Let me conclude with the #1 thing Googleknows to be true:” “Focus on the user and all else will follow.

 

Google Unaccountability Series

Part 0: Google's Poor & Defiant Settlement Record [5-1-12]

Part 1: Why Google Thinks It Is Above the Law [4-17-12]

Part 2: Top Ten Untrue Google Stories [5-8-12]

Part 3: Google's Growing Record of Obstruction of Justice [6-21-12]

Part 4: Why FTC's $22.5m Privacy Fine is Faux Accountability [7-12-12]

Part 5: Google's Culture of Unaccountability: In Their Own Words [8-1-12]

Part 6: Google Mocks the FTC's Ineffectual Privacy & Antitrust Enforcement [8-10-12]

Part 7: An FTC Googleopoly Get Out of Jail Free Card? [8-30-

Part 8: Top Lessons to Learn for Google Antitrust Enforcers [9-14-12]

Part 9: Google Mocks EU and FTC in Courting Yahoo Again [9-26-12]

Part 10: FTC-Google Antitrust: The Obvious Case of Consumer Harm [11-25-12]

Part 11: Why FTC Can't Responsibly End Google Search Bias Antitrust Investigation [11-27-12]

Part 12: Oversight Questions for FTC's Handling of Google Antitrust Probe [11-30-12]

Part 13: Courts Not FTC Should Decide on Google Practices (The Hill Op-ed) [12-10-12]

Part 14: Troubling Irregularities Mount in FTC Handling of Google Investigation [12-17-12]

Part 15: Top Ten Unanswered Questions on FTC-Google Outcome [1-3-13]

Part 16: Top Takeaways from FTC's Google Antitrust Decisions [1-7-13]

Part 17: Google's Global Antitrust Rap Sheet [1-31-13]

Part 18: Google's Privacy Words vs. its Anti-privacy Deeds [3-8-13]

Part 19: Google's Privacy Rap Sheet Updated — Fact-checking Google's Privacy Claims [3-13-13]

Part 20: DOJ & FTC Report Cards [4-12-13]

Part 21: The Evidence Google Bamboozled EU Competition Authorities [4-19-13]

Part 22: EU-Google: Too Powerful to Prosecute? Problems with Enabling Google [5-1-13]

Part 23: Google's proposed EU Search Bias Remedies: a Satire [5-17-13]

Part 24: Google's Antitrust Rap Sheet Updated [5-27-13]

Part 25: Is This the Track Record of a Trustworthy Company? See Google's Rap Sheet [6-6-13]

Part 26: Top Questions as DOJ-Google Criminal Prosecution Deadline Approaches [7-12-13]

Part 27: The Evidence Google Violated the DOJ Non-Prosecution Agreement [8-8-13]

Part 28:  Implications of EU Ruling Google Abused its Search Dominance [9-27-13]

 

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